0120093420
11-10-2009
Joan Porteous, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joan Porteous,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093420
Agency No. 1A-073-0010-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 14, 2009, dismissing her formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In the instant formal complaint, filed on June 16, 2009, complainant
claimed that she was subjected to discrimination on the basis of
retaliation (unspecified) when:
on March 9, 2009, she was notified her position was abolished and she
would become an unassigned regular clerk.
On July 14, 2009, the agency issued a final decision dismissing the
instant complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). The agency found that complainant failed to provide a
basis for the alleged discrimination, as there is no record of prior EEO
activity on the part of the complainant. The agency further noted that
complainant claimed further that her department was abolished because
two named elderly employees failed to retire. The agency determined
that complainant failed to demonstrate that she suffered harm to a term,
condition or privilege of her employment
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The agency properly dismissed complainant's complaint. In her formal
complaint, complainant alleged that she was discriminated against on
the basis of retaliation. Specifically, complainant stated she was
discriminated against on the basis of retaliation "due to the actions
of [former Maintenance Manager] and age discrimination aimed at two
(2) elderly employees." We also note in the EEO Counselor's Report,
the Counselor stated that complainant "claimed discrimination based on
retaliation when her position was abolished because her former manager
was taken out of his position late last year." However, there is
no allegation that complainant engaged in EEO or any other protected
activity. When a complaint of reprisal is not based on prior EEO or
other activity protected by Title VII, the complaint is not within the
purview of Title VII and must be dismissed for failure to state a claim.
See Bryant v. Department of Justice, EEOC Request No. 05980273 (June 4,
1999).
Furthermore, we find that the agency properly found that complainant
failed to demonstrate that she suffered harm to a term, condition or
privilege of her employment when her department was abolished because
two named elderly employees failed to retire. Accordingly, the agency's
decision to dismiss the complaint for failure to state a claim was proper
and is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 10, 2009
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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